Samantha Bangham’s Week in Cases 17 May 2013

Law Reporter

It’s been another low volume week of family law cases with just two judgments to offer our readers, although the remarkable facts of Re D will give enough food for thought for some time.

When the case of A Local Authority v S and Others , [2011] EWHC 3764 (Fam), [2013] FLR forthcoming, found its way into the law reports, I certainly didn’t expect another with such bizarre facts to follow hot on its heels. In Coleridge J’s judgment, Re D [2012] EWHC 4231 (Fam), [2013] FLR forthcoming, another couple attended the aptly named, The Miracle of God fertility clinic in Port Harcourt, Nigeria. The facts of the two cases are markedly similar: the women attended the clinic for what she believed was fertility treatment but in fact the whole process was a sham in order to place unwanted babies with new families. At first glance it seems truly unbelievable that a woman could be led to believe she was pregnant and then ‘give birth’ to a child when in reality a newborn baby was brought into the delivery room, with umbilical cord still attached, and handed to the woman. The truth was only discovered once the women brought their babies back to the UK and attended their GP, who had carried out negative pregnancy tests in the months before. Naturally, local authority and police investigations ensued, leading to care proceedings. In both cases the judge found that the parents were entirely innocent of any wrongdoing and were unaware of the bogus scheme. Reading both of these judgments really demonstrates how the judiciary are put to the test in their responsibilities to remain impartial, to leave all preconceptions and beliefs to one side in order to make a just decision in what in some cases are positively unimaginable circumstances.

Meanwhile, the Court of Appeal dealt with the case of Slutsker v Haron Investments Ltd and Others [2013] EWCA Civ 430, [2013] FLR forthcoming. In this international financial remedies case, proceedings were already ongoing in Russia and the Cayman Islands, with the husband and wife in dispute over the beneficial ownership of a property in London purchased during the marriage. The property was held on trust for the benefit of the family and the wife and children made their primary home there. When the marriage broke down the husband attempted to assert a half share on the basis of a resulting trust in the property and challenged the trustees’ exercise of the discretionary power to exclude him from the trust. He also claimed that he had insufficient knowledge of the transaction and had, therefore, not provided a valid consent. The trial judge’s finding that the husband had been aware of the critical factor of the use of the trust and the fact that he may not have known about the power to exclude him from the trust was a point of degree, not kind, was endorsed by the Court of Appeal. The husband's resulting trust argument was wrong as being based on English domestic law on a point which was to be determined, under English choice of law rules, by Russian law as the law of the matrimonial domicile. In addition he either consented to the transaction or his claim was time-barred by reference to the Russian civil and family codes.

Outside the world of family law it has been a challenging week. As some of you may know, I am a volunteer for the wonderful charity, Pets As Therapy. My Chihuahua, Louis, and I attend the Bristol Children’s Hospital to provide a bit of light relief for the young patients. This week we have been visiting a very poorly little girl who, sadly, is reaching the end of her all-too-short life. I just wanted to take the opportunity to say a massive thank you to my managing editor, Achim Bosse Chitty, and Jordan Publishing Ltd for allowing me the flexibility to undertake this work.